CHS | After losing its permit, the SPA will surely compromise. Ah, no.

CHS | After losing its permit, the SPA will surely compromise.  Ah, no.

U.S. District Court Judge Richard M. Gergel ruled that the U.S. Army Corps of Engineers failed to comply with the “formal assessment and consultative requirements” of the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) before awarding the SC Ports Authority (SPA) a permit to transform “a previously permitted transit shed…into a modern state-of-the-art $35-million cruise ship passenger terminal” at Union Pier in Charleston.

The Army Corps, for unknown and probably unknowable reasons, had determined that complying with the NEPA and NHPA assessments was unnecessary because “the proposed activity will result in minimal individual and cumulative adverse environmental effects.”  The project, the Corps said, would qualify as “maintenance,” and stated that the cruise terminal project had “no potential to cause effects on historic properties.”

Judge Gergel ruled otherwise. The Army Corps of Engineers, he said, ignored its responsibilities to do a proper assessment under the controlling NEPA and NHPA acts by saying that it was limiting its review to only five new pilings to support elevators and escalators that would come in contact with navigable waters.  That argument, the Court said, is “plainly inconsistent with the Army Corps’ own regulation…which provides for jurisdiction involving ‘any structure in or over any navigable water in the United States.'”   In his conclusion, the judge went farther, saying that rather than consider “all the activities in its jurisdiction under the Rivers and Harbors Act ‘in its scope of analysis,’ the Army Corps of Engineers, unreasonably and unlawfully, restricted its ‘scope of analysis’ to an insignificant fraction of the project that lay within the agency’s jurisdiction.”

“By omitting more than 99% of the project within its jurisdiction…  “The Court finds that the Army Corps’ limitation of the ‘scope of analysis’ to five concrete pile clusters was arbitrary, capricious, unreasonable, and contrary to law.”

Almost equally disturbing were the SPA’s own statements and data that it presented to the Court.  Quoting from the ruling, “The Ports Authority has acknowledged that a cruise ship terminal can ‘present special challenges’ in ‘managing automobile and pedestrian traffic,’ ‘protecting the environment,’ ‘and preserving Charleston’s unique character’ and ‘there are still lingering questions about how well the cruise ship business will fit into the context of this diverse, world class city.'”  “Record evidence provided by the Ports Authority supports the [opponent’s] claim…that the number of cruise ships and passengers has increased in recent years, and the proposed new and larger passenger terminal would likely significantly increase the number and size of cruise ships visiting Charleston and the volume of cruise passengers in the historic Charleston waterfront.”  By 2012, the number of ships visiting Charleston had increased by 86% over “the 2005-2009 five-year average.”

And the SPA also gave us a glimpse into a far worse future.  With a new terminal, the 1990’s-era, 855’, 2,056-passenger Carnival “Fantasy” will be replaced with ships carrying 3,450 passengers.  And based on the SPA’s data, the Court concluded, “Even if the Ports Authority maintained its voluntary cap of 104 cruise ship visits a year(2), this would represent a 131% increase over the 2005-2009 five year average and a 24% increase from 2012.”   And to service such a volume of passengers, the Court noted, the SPA estimates that on an average embarkation and disembarkation day, “up to twenty tractor trailers, sixteen small trucks, thirty-two busses, ninety taxis, and 1600 passenger vehicles would need access to the very confined” terminal area that “lies immediately adjacent to the Charleston Historic District and the Ansonborough neighborhood.”

So how do you think the SPA reacted to the ruling?   Did it agree to comply, did it suggest a compromise, or did it offer to study another, less invasive location for a terminal?   No.  It appealed.  The appeal came in spite of the SPA’s own website that appears to invalidate any argument that their project could be considered “maintenance”:  “…Charleston is an ideal cruise port.  With an efficiently run operation and plans for a new state-of-the-art cruise terminal, our port is ready to welcome cruise operators and travelers alike.”(3)  Yes, and with the widening of the Panama Canal and a newly prosperous Chinese middle class, are we to believe that those ships of the future will carry only 3,450 travelers?

But if you’re looking for relief from Charleston’s mayor or its complacent, compliant City Council, forget it.  Mayor Joseph Riley recently reiterated his total lack of interest in regulating cruise ship tourism.(4)   So it’s up to the courts.

Oral arguments in another case will be presented this Tuesday, this one at the SC Supreme Court.(5)   Carnival Cruise Lines will argue to dismiss charges that it’s violating zoning ordinances, permitting requirements and creating a nuisance.(6)  True to form, both the SPA and the City of Charleston intervened in this case on behalf of…the defendant, not on behalf of the residents, organizations and associations trying to protect Charleston from the accelerating threat of unregulated cruise ship tourism.

Surely the SC Supreme Court read Judge Richard Gergel’s decision and recognizes the defendant’s fallacious assertion that their massive floating resorts can tie up at will, disgorge thousands of people simultaneously onto the world’s most cherished historic places, and then ignore every rule and regulation these historic places have developed to protect their history, culture and quality of life.  Or must degradation accompany this exploitation?

Jay, 15 Nov 13

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1)   U.S. District of South Carolina, Charleston Division, Court Decision.  Preservation Society and Coastal Conservation League vs. US Army Corps of Engineers and SC Ports Authority
<Federal Cruise Permit SJ Order 9-18-13.pdf>

2)  The SPA has steadfastly refused to commit those “voluntary limits” in to legally binding limits.
“This Charleston Harbor Battle is over Cruise Ships” – NY Times
http://www.nytimes.com/2013/02/20/us/battle-in-genteel-charleston-over-cruise-ships.html?_r=0

3)  South Carolina Ports website – Cruise Charleston page
http://www.port-of-charleston.com/cruises/cruises.asp

4)  Reports of Mayor Joseph Riley’s comments at the membership meeting of the Charlestowne Neighborhood Assn., 29 Oct 13.

5)  South Carolina Supreme Court, Register of Cases for November, 2013.  Look for first case on 19 November.
http://www.judicial.state.sc.us/supremeRosters/dspSupRosterMenu.cfm

6)  “Carnival Cruise Lines asks for Dismissal of Suit” – Post and Courier
http://www.postandcourier.com/article/20110810/PC05/308109921

 

Written by jwilliams
The Charleston Cruise Control Blog, written by Jay Williams, Jr., published periodically since May, 2011, consists of opinions and discussions about cruise ship tourism. Although Jay is involved with various local organizations, the opinions he expresses are solely his; they do not represent the views of any organization or other individual.  Mr. Williams is an independent blogger/writer. We present these blogs for C4 website visitors as an information source and as an additional way to chronologically follow the debates, commentaries and discussions about cruise tourism in Charleston.